Posted
October 28, 2003
THE MEADOR LECTURE IN LAW AND RELIGION Elshtain Says Legal Moralism May
Diminish Personal Responsibility

Making laws to enforce moral codes more strictly may diminish
people's ability to be responsible for their own actions, according
to professor Jean Bethke Elshtain, who delivered the Meador Lecture
in Law and Religion in Caplin Pavilion Oct. 23.

“Perhaps an excess of moralism contracts the domain of responsibility,” said
Elshtain, Laura Spelman Rockefeller Professor of Social and Political
Ethics at the University of Chicago.

Elshtain said she once struggled with the lyrics of Bob Dylan's
1966 song, “Absolutely Sweet Marie”: “to live outside the law,
you must be honest.”

“What on earth was Dylan trying to say? Shouldn't law and honesty
be put together, rather than to suggest that living outside the
law demands honesty?” Elshtain asked.

THE
MEADOR LECTURE IN LAW AND RELIGION

The Meador Lecture in Law and Religion
was inaugurated in 1997 to mark the retirement of Professor
Daniel J. Meador from the University of Virginia law
faculty. Supported by an endowed fund established through
the generosity of Law School alumni and friends, the
Meador Lecture is designed to promote the interdisciplinary
study of law and religion. Further, the lecture seeks
to explore the influence of religion on the development
of law and the interplay of religion and law in the evolution
of western civilization.

“Living outside the law, not as an outlaw,
but as a free and responsible citizen means that the writ of
the law need not blanket the entire universe with a moral mandate,” she
answered. “The
challenge and indeed the premise of democracy is that we do not
require the policeman on every corner, we do not require a law
about every small thing, in order to live as honest citizens,
in order to realize a life of freedom.”

Furthermore, attempts to legislate all contingencies can lead
us down a dangerous path towards diminishing individual freedom
and responsibility. She cited the recently enacted “Maggie's
Law” in New Jersey, which makes “driving while drowsy” illegal,
allowing prosecutors to charge sleepy drivers with vehicular
homicide in the event of a deadly crash. Some supporters of the
law have said they hope driving while
drowsy will acquire the infamous status of drunk driving. In
another example of the law overstepping its bounds, she told
of a South Dakota teen who flipped his middle finger and cursed
at a school official. The Supreme Court of South Dakota recently
upheld his conviction of disorderly conduct. Rather than considering
it a teaching occasion, Elshtain said, in the way our society
works, the first reaction of school officials was to turn to
a legal solution.

Elshtain also recalled that at one school she taught at the
administration enacted a sexual harassment code that even included
an “unsolicited ogling” clause. Some of her male colleagues began
wearing sunglasses in mock protest. “One can take a terribly
important issue, and by moralizing it excessively, wind up trivializing
it, and in an area as important as sexual harassment that's unfortunate
indeed,” she said.

Elshtain referred to academic Charles Taylor's “The Perils of
Moralism,” which details modern attempts to find a code to encapsulate
all goodness. What Taylor calls “code fetishism” results in a
loss of the recognition of the plurality of goods and the centrality
of prudential judgment in life, especially in law and politics.
Codes have trouble dealing with issues of repentance, human suffering,
or the pervasive reality of evil, because laws assume an orderliness
that is not realistic. “Along comes a political monster, along
comes a certain moral dilemma, and this tidy world is rapidly
disordered,” Elshtain said.

According to Elshtain, Taylor proposed that disbelief in God
exists in a close symbiosis with belief in a certain kind of
moral order, hence secularists try to generate laws to enforce
morality. Elshtain gave the example of the French revolutionaries,
who tried to drive religion out of public life, and ended up
limiting freedom. “The moralism of the revolutionary code does
not permit mercy,” she said of revolutionaries' desire to punish
the ruling class.

On the other hand, “In the life of the mystic, much more is
demanded of the self.” Yet “providential deism”—a one-sided definition
of Christianity—can lead to unscrupulous optimism “that can't
really believe that Hitler is up to what Hitler is up to,” or
can't understand what drives a person like Osama bin Laden.

“Our resort to strict codes in a way betrays us,” she said.
When we want to guard against ogling and rude gestures, “we want
to control and control and control.” Yet exercising this kind
of control will not prevent evil.

“Modern moralism has a hard time making sense of evil and suffering,
[and] tends to sweep certain kinds of dilemmas when goods conflict
under the carpet,” she said. “Does [codifying moralism] not .
. . betray a kind of mistrust of what people are up to and constrict
the realm of risk-taking, of human freedom, the fact that people
must be free to make their own mistakes?” Taylor says idolatry
of rules dumbs us down, morally and spiritually, so we “cannot
understand human motivation that falls outside the carefully
tended rows, whether for good or for ill.”

Elshtain questioned whether law requires a comprehensive moral
philosophy, arguing that a one-size-fits-all doctrine doesn't
work in all cases. The foreordination involved in sentencing
codes indicates we want guarantees for outcomes, without taking
into account circumstances. Elshtain cited a 1992 case in which
a woman and her husband were arrested for starving their 13-week-old
son to death. The couple refused to plea bargain and the mother
refused to plead guilty to diminished capacity, so her attorneys
instead argued the mother was the real victim. The defense based
their argument on battered woman syndrome—despite the fact that
there was no evidence her husband physically abused her. Her
attorneys argued that her husband was controlling her, even when
he was at work for 10 hours a day. The jury found her guilty
of second-degree murder, and prosecutors later said that claiming
she had no responsibility was insulting to women in the community
who had been physically abused.

Elshtain said codes function to “bleach out possibilities”—either
the woman has to be the victim or abuser, not both. She added
that the jury probably would have given her a lighter sentence
if she had accepted at least partial responsibility for her child's
death. “We see how a moralistic code may demand either a high
degree of responsibility [or] how a moralistic code may undermine
responsibility by re-describing a human being as outside the
boundaries of moral responsibility altogether. Either way, what
is lost is nuance, paradox, dilemmas, uncertainties, both justice
and mercy.”

Furthermore, it's not authentic mercy to downgrade her category
of human being (“battered woman”) in order to proclaim her innocence. “Authentic
mercy appears when we accept their status as moral agents but
choose in certain circumstances to show the face of mercy that
belongs side by side with the face of justice,” she said.

Elshtain also cited an example of Kantian philosophy and how
it might strain practical judgment and reason by its adherence
to strict codes. In Kant's essay “Perpetual Peace,” he argues
that for peace to be declared, every concern between warring
parties must be settled—anything else would be a mere truce.
Kant's other requirements for perpetual peace include that nations
must keep no secrets, and must have a republican constitution.
Kant also suggested that statesmen turn for advice to moral philosophers,
who are by nature incorruptible and incapable of forming an interest
group (hard to believe, Elshtain said).

“I think that you can see . . . many such thinkers now infusing
kind of strict Kantianism into their discussions and understanding
of international law.” Elshtain added that international law
does have a role in the world, but supporters view national justice
as second-rate, and military courts are seen as even more suspect.
Even civilian courts are viewed as second-rate to tribunals.
But she questioned the international legal system's accountability. “How
can you appropriately limit the scope of international jurisdictions
in order to deal with any potential abuses? . . . It's the old
perennial question, who judges the judges?”

Elshtain said involving international legal bodies makes sense
if national prosecutions are not forthcoming, or if there is
no stable court system in a country. But for example, she said, “ Argentina
should come to grips with what the Argentineans did to one another” during
the period of the “Dirty War” during the late 1970s and early
1980s. Immediately following the conflict there were trials,
then a period of amnesty, but Argentineans are now prosecuting
war criminals again. “That's something they took upon themselves
as a responsibility.”

She also cited the “spectacle” of Amnesty International criticizing
truth and reconciliation commissions in South Africa because
Amnesty viewed the punishments for perpetrators of apartheid
as too light. “Certainly the politicization of universal jurisdiction-based
prosecutions is also a problem,” she said.

Elshtain upheld World War II-era Protestant theologian Dietrich
Bonhoeffer—who was executed for his role in a conspiracy to
assassinate Hitler—as one who struggled with disobeying laws
he could not morally agree with, including Nazi rule and the
rigidified legalisms that dominated Lutheranism in that era.
He argued that “the religious believer was obliged in this situation
to be disobedient at a certain point.” Elshtain said Bonhoeffer
believed in responsibility undertaken in freedom rather than
in an unthinking obedience to a then-dominant moral code. For
Bonhoeffer the moral center of humanity was a God who sacrificed
himself, rather than the Kantian ideal of a sovereign self. While
Kant held that one should never lie under any circumstances,
even when a friend's life is threatened, Bonhoeffer said the
possibilities of truth-telling were more complex, and should
take circumstances and consequences into account.

Elshtain proposed practical reason as an alternative to legal
moralism. “We cannot obviously do without the law and enforcement
of those laws, but the question is, should the law provide a
total catechism of some kind . . . or should the law provide
a framework within which free citizens debate, make decisions
about how they are to be governed, what sort of society they
inhabit, and clearly I am opting for the latter,” she said.

She referred to the book The Ethics of Memory, which
outlined two kinds of human relationships—thick relations that
are moored in a shared past or memories, and thin relations,
defined by simple shared humanity. Elshtain described listening
to a Kantian moralist who bemoaned that her teenaged daughter
was able to go to a good school while so many girls around the
world could not. This presented a moral dilemma for her—should
she send her daughter to the good school? Elshtain proposed that
the woman couldn't distinguish between thick and thin relations. “Her
responsibility is more acute” where her own child is concerned,
she said; she should rejoice over her daughter's good fortune,
then redouble her efforts to improve the lives of teenaged girls
in other parts of the world. “In most cases, we cannot commit
a Kantian generalization, do something only if everyone may do
it, without creating moral havok,” she quoted Ethics author
Avishai Margalit.

Elshtain compared judging law to casuistry—what
she called a practical and interpretive method: you classify
what kind of event it is, identify which presumptions are relevant
to the event, comment on the circumstances, reflect on opinions
of prior authorities, and bring all these elements together
to make a judgment. “This sounds a lot like the constitutive
virtues of the law, as well as a way to soften the tyranny
of principles,” she said. Rather than ignoring contingencies,
you immerse yourself in them.

“The law . . .is a form of moral thinking that helps us most
of the time to uphold certain rather humble truths about what
is fair, and what is reasonable, and what is decent,” she said. “Law
concerns people in their concreteness . . .At the same time it
speaks to our highest aspirations for human decency and right.”

Elshtain returned to the topic of the Dirty Wars: some argued
that every Argentinean implicated in the three military puntas
that governed the country so disastrously during the wars be
found and punished. One mother Elshtain met whose three sons
had disappeared called that idea a “utopia of punishment.”

“That kind of moralism could become a thirst for vengeance,” Elshtain
said, and make it more difficult to uphold the already-fragile
constitution there. “The law has to make thick and thin distinctions,” Elshtain
added. “It has this concrete role,” which meshes with theology's
idea of community membership.

“If we fly to the heavens are we flying to a kind of metaphysical
level, or a level of meta good too quickly . . . if we do that
in the kind of rigorous way I've been criticizing, we lose the
moral . . . that is the very heart of the matter, for law, for
politics, for faith alike.”• Reported by M. Wood